Why is this important?
The habitual residence test - how a decision is made
If you come to the UK from abroad and want to claim certain benefits, you must meet the conditions of the habitual residence test. This test is carried out to make sure that if you're planning to claim benefits, you've a legal right to be in the UK and that you're intending to settle here for the time being.
The test applies to British citizens returning to the UK after time abroad, as well as people coming to the UK from other countries.
The right to claim benefits depends on what terms you've been allowed to enter the UK. This is called your immigration status. If you have limited rights and are subject to immigration control, you may damage your chances of being allowed to stay in the UK if you try to claim benefits. If you are in any doubt about your immigration status, you should always seek specialist advice first.
This page explains how a decision is made on whether you pass the habitual residence test.
Proving your right to reside and intention to settle in the UK can be difficult. If you're unsure about anything, seek the help of an adviser.
How is the decision made?
When you fill in your benefits claim form, you will be asked questions about your nationality and time you have spent outside the UK.
You will also be asked questions about what efforts you have made to settle in the UK. If you're a work seeker you will have to say what you are doing to find work and your English language skills will be assessed to make sure that you speak it fluently enough to be able to find work.
Based on your answers, the Department of Work and Pensions (DWP), HM Revenue and Customs (HMRC) or local authority will ask you for more information to decide if you are habitually resident.
If you're in a couple, only the person making a claim for benefits has to meet the conditions of the HRT. So before you make a claim, it’s a good idea to decide which one of you is most likely to meet those conditions.
If you're subject to immigration control, you can't claim benefits. Making a claim may affect your right to stay in the UK.
This may be the case if you:
- need permission to enter or remain in the UK but don't yet have it
- have permission to enter or remain in the UK only if you don't claim benefits or use other public services
- were given permission to enter or remain in the UK because someone formally agreed to support you.
If more information is needed, you will be sent another form to complete. On this form you must provide evidence of your right to reside, intention to settle in the UK and how long you have been in the UK.
A decision maker at the DWP, HMRC or your local authority will decide if you meet the conditions or not. If it's decided you don't meet the conditions, you won’t be able to receive the benefits. The test can take up to six months to process. If you think you will struggle financially while waiting for a decision, seek advice on what help you may be able to get.
Right to reside
Most people who come to the UK have permission to enter the country and spend time here. This is called lawful presence. However if you want to claim benefits, you must also have a right to reside.
The right to reside means that you have permission or a right to live in the UK and claim benefits or are an EEA national exercising European Treaty rights. It's also known as legal residence. There are several ways you can have the right to reside. For example, it can depend on:
- your nationality
- your immigration status
- the circumstances of you and your family members
- the right to reside under both UK and European law.
There may be more than one way you have a right to reside. For example, if you're an EEA national you're automatically given a three month right to reside when you enter the UK but this is not accepted as a right to reside for the HRT test. However, under European law, if you take up work in the UK, you also gain a right to reside and you may be able to claim certain benefits.
There is no clear definition of habitual residence and it can be difficult to prove that you intend to settle in the UK. The decision maker can choose from a bank of up to 100 questions which will take into account your individual circumstances. For example, they may ask you about:
- the length of time you have been in the UK
- your reasons for coming to the UK
- how long you intend to stay here
- whether you're likely to find work in the UK.
The decision maker will also look at how much your life is based in the UK. This is known as your centre of interest. Things they will consider include whether:
- you own property in the UK
- your personal possessions are mostly in the UK
- you have family and relatives here
- you've joined any clubs or societies in the UK
- you've enrolled your children at a school.
It can be difficult to predict what decision will be made about your claim. Your specific circumstances will be taken into account when they make a decision. It's really important to include as much evidence as possible when you fill in the HRT form. If possible, seek advice before you complete it.
- Find out about whether you are likely to pass the test or if you are exempt from the test altogether
- If you need more help